Citation: R v Ronald Edward Medich (No. 18) [2017] NSWSC 171
Court: Supreme Court of New South Wales
Date: 24 February 2017
Judge(s): Bellew J
Background
The accused stood trial for the murder of a businessman (the deceased) who was killed on 3 September 2009. The prosecution case included evidence that the accused had engaged others to kill the deceased, and that the deceased had, in the period before his death, made various representations to associates about threats to his life.
A witness, Clinton Sarina, had previously worked in finance and knew the deceased both professionally and socially from around 2003. He had made a statement to police in August 2009 containing several paragraphs recording things the deceased had told him: that someone referred to as "Lucky" had been threatening him; that the accused had arranged to have him killed; and that the deceased believed his safety was at risk because of the strength of his civil case against the accused.
The Crown proposed to call Sarina but not lead evidence from him in chief, instead making him available for cross-examination. Senior counsel for the accused indicated he would cross-examine Sarina on one paragraph of his statement only (paragraph 11, relating to the deceased handing over a piece of paper with "Lucky's" details). Two discrete evidentiary questions arose from this approach.
Legal Issues
- Whether, if the accused elicited the contents of paragraph 11 in cross-examination, the Crown should be permitted to re-examine Sarina on the representations in paragraphs 12 and 17, which contained additional statements by the deceased about threats from the accused and "Lucky"
- Whether, if the re-examination were not permitted, the evidence in paragraph 11 should be excluded under section 135(b) of the Evidence Act 1995 (NSW) as misleading or confusing
- Whether leading questions should be restricted during cross-examination of Sarina pursuant to section 42 of the Evidence Act 1995 (NSW)
Decision
On the re-examination issue, Bellew J accepted the Crown's submission that paragraphs 11, 12, and 17 were necessarily related, and that to admit paragraph 11 in isolation would leave the jury with an incomplete and potentially distorted picture of the representations the deceased made to Sarina about the threats he was receiving. His Honour found that the proposed re-examination fell within section 65(9) of the Act, which lifts the hearsay rule for representations about the same "matter" adduced by another party through a witness who perceived those representations.
His Honour also found that the re-examination would be relevant within the meaning of section 55, having the capacity to rationally affect the assessment of facts in issue. The Crown was accordingly permitted to re-examine Sarina on the contents of paragraphs 12 and 17 if the accused proceeded to cross-examine on paragraph 11. This ruling was made on the assumption that the evidence, if led, would be adduced in admissible form consistent with the contents of the statement.
On the use of leading questions, Bellew J considered section 42 of the Act, which empowers a court to disallow leading questions in cross-examination in certain circumstances. His Honour noted that while the witness had given no evidence in chief (making section 42(2)(a) inapplicable), the considerations in sections 42(2)(b) and (c) had some application because the evidence in paragraph 11 assisted the accused. His Honour concluded that the nature of the evidence was such that non-leading questions would better foster the integrity of the evidence given, and directed that leading questions not be permitted in cross-examination of paragraph 11, except where a question went to an inconsistency between the witness's oral evidence and his statement. The same restriction would apply in any re-examination.
Orders Made
• The Crown may re-examine Mr Sarina in respect of paragraphs (12) and (17) if evidence in (11) is elicited in cross-examination
• If the contents of (11) are to be cross-examined upon, leading questions will not be allowed, save for questions going to inconsistency between oral evidence and the statement
• The same restriction on leading questions applies to any re-examination
Key Takeaways
- Section 65(9) of the Evidence Act 1995 (NSW) can permit a party to re-examine a witness on additional representations by the same deceased maker where those representations concern the same subject matter as representations already elicited in cross-examination by the opposing party.
- Where cross-examination is limited to one portion of a witness's statement, a court may find that other portions of that statement address the same "matter" within the meaning of section 65(9), particularly where the omitted portions would otherwise leave an incomplete or distorted picture before the jury.
- A court's power under section 42 to restrict leading questions in cross-examination is not confined to the mandatory considerations listed in section 42(2); the nature of the evidence itself may independently warrant such a restriction where non-leading questions would better secure its integrity.
- The exception under section 42 for questions going to an inconsistency between a witness's oral evidence and their prior statement remains available even where leading questions are otherwise disallowed.
- Rulings on the permissible scope of re-examination made in advance of cross-examination necessarily rest on assumptions about how the cross-examination will actually unfold; such rulings may require revisiting depending on the evidence as given.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), sections 39, 42, 55, 65(9), 135, 137
Cases
- Eastman v R (1997) 158 ALR 107
- R v Mankotia [1998] NSWSC 295
- R v Medich (No 8) [2016] NSWSC 1713